News of the week:
Abusive financial services: Consob blacks out 5 new websites
Highly dilutive increase in the capital of Trevi Finanziaria Industriale Spa - Use of the rolling model: Warning Notice
Trevi Finanziaria Spa: Consob approves the prospectus for the capital increase and listing of new shares and warrants
Applicability of the exemption from the takeover bid requirement for the Trevi Finanziaria Spa rescue operation: response to query
Supervisory Guidelines for Simple Investment Companies (SiS): Joint Consob-Bank of Italy consultation document
Real estate transaction related to the purchase and sale of bare ownership: response to query
Amendments to the Market Regulations on trading ticks
Joint ESA Consultation Document on proposed technical standards for environmental, social and governance information in the financial services sector
Calculations for the transparency regime and the determination of systematic internaliser status
Investor protection warnings from other supervisory authorities
- NEWS OF THE WEEK -
Consob has ordered the black-out of 5 new websites that offer financial services illegally.
The commission availed itself of the powers resulting from the 'Decreto Crescita' ('Growth Decree'; Law no. 58 of 28 June 2019, article 36, paragraph 2-terdecies), on the basis of which Consob can order internet access providers to block access from Italy to websites offering financial services without the proper authorisation.
The companies and websites are listed below:
- Sigma Consulting Limited and Solt Corp. Ltd (website www.firstcapital.fm);
- Itistocks Brokers (website https://itistocksbrokers.com);
- Gam Group Ltd (website www.marketsfx.org);
- Elit Property Vision Ltd (website https://global-banco.com);
- Platin-fx Ltd (website www.platin-fx.com).
The number of sites blacked out since July 2019, when Consob got the power to order that the websites of fraudulent financial intermediaries be blacked out, has thus risen to 194.
The measures adopted by Consob can be consulted on the website www.consob.it.
The black-out of these websites by internet service providers operating on Italian territory is ongoing. For technical reasons, it can take several days for the black-out to come into effect.
Consob draws investors' attention to the importance of adopting the greatest diligence in order to make informed investment choices, adopting common sense behaviours, essential to safeguard their savings: these include, for websites that offer financial services, checking in advance that the operator with whom they are investing is authorised, and, for offers of financial products, that a prospectus has been published.
To this end, Consob would remind you that there is a section on the homepage of its website entitled "Be aware of fraud!" which provides useful information to warn investors against financially abusive initiatives.
Consob has drawn attention (Warning Notice No 7/20 of 30 April 2020) to the capital increase with share option rights proposed by Trevi Finanziaria Industriale Spa, listed on the MTA regulated market organised and managed by Borsa Italiana Spa.
The increase in question is highly dilutive. This circumstance means that there is a risk that anomalies in the price formation process occur during the period in which the new shares are offered in option, whereby the market price of the shares might be overvalued compared to their theoretical value.
To prevent this risk, the capital increase in question will be managed according to the "rolling" model, as already indicated by Borsa Italiana in a special Notice. The rolling model, thoroughly described in Consob Communication no. 88305 of 5 October 2016, in the Consultation Results document of 28 April 2016 and in the technical standards issued by Borsa Italiana and Monte Titoli Spa, basically envisages that, once the increase has started, option rights can be exercised on each day of the increase, starting from the third day, and immediately receive the newly issued shares.
The rights must be exercised in the manner and within the times specified in the Service Instructions of Monte Titoli's Centralised Management and under the contractual conditions established with the intermediary on a case-by-case basis.
The "early" delivery of the newly issued shares makes it possible to carry out arbitrage, consisting of the purchase of option rights and the subsequent sale of a number of shares equal to the number of shares that will be received by exercising the rights, starting from the first day of the capital increase; this activity, in turn, makes it possible to prevent any of the price anomalies referred to.
Alternatively, option rights can be exercised according to the traditional model, with delivery of the newly issued shares at the end of the increase.
Finally, delivery of the new shares before the end of the increase may cause investors to lose the revocation right envisaged in article 95-bis, paragraph 2, of Legislative Decree No 58 of 24 February 1998.
Further information on the rolling model, including the documentation mentioned above, is available in a dedicated section of the Consob website (http://www.consob.it/web/area-pubblica/aumenti-di-capitale-iperdiluitivi).
Consob approved the prospectus for the public offering and admission to trading on the electronic stock market (MTA), organised and managed by Borsa Italiana Spa, of common shares and "Trevi - Finanziaria Industriale Spa Loyalty warrants" issued by Trevi Finanziaria Spa.
Trevi Finanziaria, listed on the MTA since 1999, is the holding company that heads the Trevi Group, active in foundation engineering services for civil works, infrastructure and construction for special foundations, in the construction of drilling rigs for hydrocarbon extraction and water exploration, and in oil drilling services.
At the date of the prospectus, the issuer is not controlled directly or indirectly by any person within the meaning of article 93 of the Consolidated Law on Finance.
The economic, financial and capital position of the Trevi group is under great strain.
In order to deal with this situation, the issuer - with the filing of its application for the approval of restructuring agreements pursuant to article 182-bis of the Bankruptcy Law, on 5 August 2019 - started a process of corporate restructuring of the group based on a financial manoeuvre which, in a nutshell, through the signature of an investment agreement and a restructuring agreement,
(i) a capital increase under option and a capital increase by conversion; (ii) a restructuring of most of the group's debts, to be implemented under the terms of certain debt restructuring agreements that the issuer and certain group companies have signed with their creditor banks (the restructuring agreement and the further creditor agreements);
(iii) the assumption of new debt, at certain conditions; (iv) the selling off of its Oil & Gas division. The financial manoeuvre involves the companies of the Trevi group, institutional shareholders, financial parties and other creditors of the group.
On 30 July 2018, an extraordinary meeting of the Trevi shareholders resolved to grant the Board of Directors the power to increase the share capital for cash, in one or more tranches, also divisible, for a maximum period of 24 months from the date of the resolution, for a maximum amount of €400 million (of which, in cash, no more than €150 million). On 17 July 2019 and 24 February 2020, the Board of Directors of the issuer, in execution of the powers granted to it, approved a total recapitalisation of approximately €213 million, and specifically:
a) an increase in the share capital, for cash and indivisibly, for a total of up to €130,001,189.07, including the share premium, through the issue of a maximum of 13,000,118,907 ordinary shares, to be offered in option to shareholders by 31 May 2020 (rights issue)
b) to increase the share capital against payment for a total amount of €63,137,242, indivisibly up to €10,593,896, through the issue of a total of 6,313,724,200 ordinary shares, with no par value, at a price per share of €0.01, of which €0.001 to be charged to equity and €0.009 to be charged to share premium (the "conversion shares"), to be offered, without option rights, to banks with release through voluntary offsetting of certain, liquid and collectable receivables, by 31 May 2020, according to a ratio of conversion of the receivable into capital of 4.5 to 1 (capital increase by conversion);
c) to increase the share capital for cash and divisibly, for a maximum total amount of €19,986,562.21, including share premium, by issuing a maximum of 1,537,170,662 ordinary shares, at a price per share of €0.013, of which €0.001 to be charged to equity and €0.012 to be charged to share premium (the "compendium shares"), to be assigned to those who were shareholders before the option or the rights issue could be exercised, with issue, before the end of 31 May 2020, of a maximum of 1,647,793 warrants carrying the right to subscribe the aforementioned compendium shares at the maturity date set at the fifth anniversary of the issue date in a ratio of 934 new compendium shares for each warrant held (capital increase to service the warrants).
The rights offering is for a total of 13,000,118,907 shares, with no par value, with the same characteristics as those in circulation, regular dividend entitlement, to be offered to all shareholders pursuant to article 2441, paragraph 1, of the Italian Civil Code, at an offer price per share of €0.01, of which €0.001 to be charged to equity and €0.009 to be charged to share premium.
The option rights, which grant entitlement to subscribe to the shares on offer, must be exercised between 4 and 18 May 2020, inclusive (the "offer period"), under penalty of forfeiture. The option rights will be tradable on Borsa Italiana from 4 to 12 May 2020, inclusive.
Option rights not exercised by the end of the option period will be offered on Borsa Italiana by the issuer within one month of the end of the option period, for at least five trading days, pursuant to article 2441, paragraph 3, of the Italian Civil Code.
The start and closing dates of the offer on Borsa Italiana and the number of unexercised option rights to be offered thereon will be communicated to the public by means of a special notice published in at least one national daily newspaper and on the issuer's website: www.trevifin.com.
The rights issue presents special characteristics, namely, highly dilutive effects, since it is characterised by a high ratio of number of shares on offer to be issued to number of shares in circulation, due to the considerable difference between the offer price and the cum market price (i.e. the last share price before the start of the offer period).
The rolling model introduced by Consob Communication no. 88305 of 5 October 2016 for hyperdilutive capital increases (see above) applies to this rights issue.
In the "risk factors" chapter, the prospectus outlines the risks with regard to the financial situation of the issuer and the group and to the operational activity and business sector in which the issuer and the group operate, and to the governance and financial instruments of the issuer.
In particular, among the risk factors, it highlights that the delivery of the shares on offer before the end of the capital increase in option (rolling model) may cause the investor to lose the right to revocation provided for in article 95-bis, paragraph 2, of the Consolidated Law on Finance. Therefore, investors wishing to subscribe to the rights issue may exercise the right of revocation provided for in article 95-bis, paragraph 2, of the Consolidated Law on Finance for events that may arise during the offer period only if they subscribe to the offer with the last day delivery.
Among the risk factors, it is also highlighted that the execution of the rights issue and the capital increase by conversion will have significant dilutive effects on stakes in the issuer's share capital. For shareholders that do not exercise their option rights, the execution of these capital increases will result in a dilution of their stake in the issuer's capital by 99.99%. For a shareholder that exercises their option rights in full, the execution of the above capital increases will result in a 32.7% dilution of their shareholding in the issuer.
Consob has expressed its opinion in response to a query concerning the applicability of the exemption from the takeover bid requirement for rescue operations, pursuant to article 106, paragraph 5(a) of Legislative Decree No. 58 of 1998 and article 49, paragraph 1(b),1(ii) of Regulation No. 11971 of 1999 (rescue operations of companies in crisis in the presence of a restructuring agreement).
In particular, Trevi Finanziaria Spa (Trevifin or the issuer), also in the interest of its shareholders, FSI Investimenti Spa (FSII), which is owned by Cassa Depositi e Prestiti Spa (CDP), Polaris Capital Management LLC and Trevi Holding Società Europea (a company owned by certain members of the Trevisani family), and of a pool of banks that are creditors of the issuer (the 'banks'), set out the terms and conditions of the recapitalisation and reconstitution of the equity of Trevifin and asked for confirmation that 'there is no obligation to launch a public takeover bid for the ordinary shares of Trevifin on any of the reference shareholders or on the banks, either individually or jointly as a result of the execution of the operation [...]'.
The operation (rights issue and bank increase) is part of a broader financial package approved by the issuer's Board of Directors in December 2018 in order to implement the 2019-2022 consolidated business plan and is aimed at restoring the solvency of the company which has been in situation of financial and equity crisis since 2016 which culminated in December 2018 in its meeting the conditions for the applicability of article 2447 of the Italian Civil Code. Moreover, it is the object of the restructuring agreement signed on 5 August 2019 by the issuer's creditor banks and the investment agreement signed on the same date by FSII, Polaris and the issuer.
Specifically, the query concerns the effects resulting from the execution of a rights issue, subscription of which is fully guaranteed by the undertakings given by FSII and Polaris and, subordinately, by the banks, and a capital increase which will be subscribed by the banks themselves by converting a proportion of the debt they are owed by the issuer.
As a result of the above capital increases, CDP, individually and as the entity controlling both FSII and Sace Spa and/or jointly with Polaris, pursuant to article 101-bis, paragraph 4-bis and article 109 of the Consolidated Law on Finance, will exceed the 30% threshold set out in article 106, paragraph 1, of said Consolidated Law.
Consob considers that the effects of the operation do not determine any obligation on the reference shareholders, individually or jointly considered and/or for the banks to make a public takeover bid, due to the applicability with respect to the aforementioned capital increases, of the exemption for rescue operations prescribed in article 106, paragraph 5, letter a) of the Consolidated Law on Finance and in article 49, paragraph 1(b), 1(ii) of the Issuers' Regulation. This is because all the conditions required by the applicable laws have been met, in the absence of any known elements that could hinder their applicability.
The response to the query (Communication No 0387967/20 of 28 April 2020) is published on the Consob website at the following link: http://www.consob.it/web/area-pubblica/bollettino/documenti/bollettino2020/c0387967.htm).
Consob and the Bank of Italy submit the draft Supervisory Guidelines on Simple Investment Companies - SiS for public consultation.
The SiS was introduced into the national legal system by the "Growth Decree", converted into law with amendments by article 1 of Law no. 58 of 28 June 2019, which amended the Consolidated Law on Finance (Legislative Decree no. 58 of 24 February 1998) to regulate a new type of Italian alternative closed-end collective investment undertaking (UCI) constituted in the form of a closed end investment fund (SICAF), the "Società di investimento semplice" (simple investment company) or SiS.
Specifically, the Consolidated Law on Finance defines an SiS as an Italian AIF (Alternative Investment Fund), set up as a closed end investment company (SICAF), reserved for professional investors or not reserved, which directly manages its assets and complies with the following conditions: net assets that do not exceed €25 million; sole company purpose is the direct investment of the assets collected in SMEs not listed on regulated markets that are in the testing, establishment and start-up phase, in derogation from article 35a(1)(f); it does not use leverage; it has a share capital at least equal to that prescribed in article 2327 of the Italian Civil Code, in derogation from article 35a(1)(c) of the CLF.
In order to promote the uniform and correct application of the new rules, the joint communication contains an overview of the main provisions applicable to SiS's, defines some supervisory guidelines, which represent the expectations of Consob and the Bank of Italy and on how SiS's will have to comply with the new rules, indicates the procedure applicable in case of non-temporary exceeding of the net equity limit of article 1, paragraph 1, letter i-quater of the Consolidated Law on Finance.
The consultation, the text of which is available on the websites of Consob and of Banca d'Italia, will end on 29 July 2020.
The Commission responded to a query concerning "a real estate transaction involving the sale of bare ownership".
In particular, Consob was asked whether the inclusion of clauses called "Put Option", "Call Option" and "Alternative Clause" within the contract with the purchaser/intending purchaser of a bare ownership "distorts that contract by making it an investment contract on a financial product, rather than remaining a contract for the purchase and sale of bare ownership of a property.
In the light of the characteristics of the contract set out in the question, the Commission considered that it falls within the category of 'financial products' referred to in article 1, paragraph 1,(u) of the Consolidated Law on Finance, and defined as 'any other form of investment of a financial nature'.
The response to the query (Communication No 0385340/20 of 28 April 2020) is published on Consob's website at the following link http://www.consob.it/web/area-pubblica/bollettino/documenti/bollettino2020/c0385340.htm).
Consob has made a number of amendments to the Market Regulation on trading ticks for the purposes of implementing article 64(5) of Directive (EU) 2019/2034 (Resolution no. 21339 of 29 April 2020).
The amendment of article 9, paragraph 2, of the above mentioned Regulation is aimed at aligning national legislation with the European legislation that amended article 49 of MiFID II, with a view to ensuring a level playing field between trading venues and systematic internalisers with regard to large transactions concluded at the median point of current purchase and sale prices.
This intervention is possible because of the regulatory delegation contained in article 65-sexies, paragraph 7, letter f) of the Consolidated Law on Finance, which empowers Consob to establish, by regulation, "the specific operational requirements that trading venues must adopt" with regard, inter alia, to the "parameters for calibrating regimes in terms of the size of trading tick sizes".
On 23 April 2020, the three European supervisory authorities (EBA, EIOPA and ESMA - the ESAs) published (https://www.esma.europa.eu/document/joint-esa-consultation-esg-disclosures) a joint consultation paper to obtain comments on the proposals for regulatory technical standards developed under Regulation EU 2019/2088 on sustainability in the financial services sector (the SFDR) with the objective of:
- strengthening the protection of end investors;
- improving the information provided to investors by financial market participants and financial advisors; and
- improving investor information on financial products.
The SFDR authorises the ESAs to develop regulatory technical standards (RTS) on the content, methodology and presentation of information on ESG factors at both entity and product level. In addition, the consultation document contains proposals on the "Do no significant harm principle" (DNSH) identified in EU Regulation 2019/2088.
The consultation ends on 1 September 2020.
The regulatory framework delineated in Directive 2014/65/EU (MiFID II) and Regulation (EU) no. 600/2014 (MiFIR) requires the performance of a series of calculations for the application of the transparency regime and for the determination of the execution of systematic internalisation activities by investment firms that trade on their own account by executing OTC clients' orders in an organised, frequent, systematic and substantial way.
Pursuant to a special agreement for the delegation of functions, the ESMA is responsible for the centralised development and publication of these calculations, within the Financial Instruments Transparency System (FIRTS).
In order to permit their correct application by stakeholders of the transparency calculations and to determine the status of systematic internaliser for non-equity financial instruments, the ESMA has published (https://www.esma.europa.eu/press-news/esma-news/esma-publishes-templates-quarterly-non-equity-systematic-internaliser-data a) instructions for identifying the pages of the institutional website where this information will be published, as well as the data publication template for the quarterly assessment of systematic internalisation activity.
The supervisory authorities of the United Kingdom (Financial Conduct Authority - FCA), Luxembourg (Commission de Surveillance du Secteur Financier - CSSF), Poland (Polish Financial Supervision Authority – KNF), Quebec (Autorité des Marchés Financiers – AMF) and New Zealand (Financial Markets Authority - New Zealand - FMA) report companies and websites that are offering investment, financial and insurance services without the required authorisations.
Reported by the FCA:
- Qualion Finance (www.qualion.co.uk, www.qfprivate.com), with stated addresses in Zurich and New York, a clone of the authorised company Qualion Finance (www.qualion.eu), based in Luxembourg, previously reported by the CSSF (see "Consob Informa" no. 8/2020);
- Hsbc Invest Direct / Hsbc InvestDirect (e-mail: InvestDirect@europe.com, email@example.com), clone of the authorised company HSBC Private Bank (Uk) Limited (www.hsbcprivatebank.com), based in London.
Reported by the CSSF:
- GoldenCfd Broker Firma, with stated address in Luxembourg;
Reported by the KNF:
- Prbs Gestion Group Llc, with stated address in St. Vincent and the Grenadines.
Reported by AMF- Quebec:
- Crestview Exploration Inc. The Quebec supervisory authority warns savers of missives containing references to this company and the possible increase in its share profits due to the recession caused by the effects of the Coronavirus.
Reported by the FMA - New Zealand:
- Access Finance Limited (www.accessfinancenz.com).
Order, pursuant to art. 7-octies, letter b) of Italian Legislative Decree no. 58 of 24 February 1998 (Consolidated Law on Finance) to cease infringement of art. 18 of the said Legislative Decree, put in place by:
- Sigma Consulting Limited and Solt Corp. Ltd, through the website www.firstcapital.fm (Resolution no. 21341 of 29 April 2020);
- Itistocks Brokers, through the website https://itistocksbrokers.com (Resolution no. 21340 of 29 April 2020);
- Gam Group Ltd, through the website www.marketsfx.org (Resolution no. 21343 of 29 April 2020);
- Elit Property Vision Ltd, through the website https://global-banco.com (Resolution no. 21342 of 29 April 2020);
- Platin-fx Ltd, through the website www.platin-fx.com (Resolution no. 21344 of 29 April 2020).
The Market Regulation on negotiating ticks has been modified to implement article 64(5) of Directive (EU) 2019/2034 (Resolution no. 21339 of 29 April 2020).
- Applicability of the exemption from the takeover bid requirement for the Trevi Finanziaria Spa rescue operation: response to query (Communication No 0387967/20 of 28 April 2020).
- Warning Notice regarding the highly dilutive capital increase of Trevi Finanziaria Industriale Spa - use of the rolling model (Warning Notice No 7/20 of 30 April 2020).
- Real estate transaction involving the sale of bare ownership: response to query (Communication No 0385340/20 of 28 April 2020).
- The prospectus for the public offering and admission to trading on the electronic stock market (MTA), organised and managed by Borsa Italiana Spa, of common shares and "Trevi - Finanziaria Industriale Spa Loyalty warrants" issued by Trevi Finanziaria Spa has been approved (Decision of 29 April 2020).
- The information notes on the listing and/or public offering programmes of plain vanilla bonds and structured bonds issued by Mediobanca - Banca di Credito Finanziario Spa have been approved (Decision of 29 April 2020).
- Forfeiture due to express waiver by Fugen Private Sim Spa (in voluntary liquidation) of its authorisation to provide investment services, with the consequent deletion of said company from the register of Italian investment companies (SIMs) referred to in article 20 (1) of the same decree (Resolution no. 21338 of 29 April 2020).
- The inclusion of Equifunding Srl, with registered office in Milan, in the register of operators as per article 50-quinquies, paragraph 2, of legislative decree no. 58 of 24 February 1998 was ordered (Resolution no. 21330 of 22 April 2020).
taken or made public during the week
(the documents with a hyperlink or underlined in the press edition are available as of now in the respective sections of the website www.consob.it; the other measures will become available over the next few days)
Based on the provisions of article 147-ter of Legislative Decree no. 58/1998 (Consolidated Law on Finance) and article 144-ter et seq. of the Issuers' Regulation, the Head of Consob's Corporate Governance Division has determined the minimum shareholdings for the submission of slates of candidates for the election of the board of directors and internal control bodies of listed company Piquadro Spa, whose financial year ended on 31 March 2020. Without prejudice to any lower quota provided for in the companies' by-laws, the threshold has been set at 2.5%. The full text of the management decision (no. 31 of 28 April 2020) is available on the website www.consob.it, accompanied by the table setting out the criteria used to determine the shareholding thresholds.
until 15 May 2020.